Medicolegal Issues of Pain Medicine in the Rehabilitation Patient

Civil case

Criminal case

Domain

Private

Public (Federal or State)

Outcome against defendant

Liable

Guilty

Economic compensation or noneconomic damages

Misdemeanor or Felony with possible jail time

Jurisdiction

Federal or State Civil Court

Federal or State Criminal Court

Who sues?

Plaintiff (e.g., patient)

Prosecutor (Federal or State)

Legal service for indigent client

Not available for most cases

Available for most cases

It is important not to confuse civil law, as practiced in most European countries except for Great Britain, with civil cases as stated above. Also, it is also important to understand the type of law that is practiced in Great Britain, as well as its former colonies, and to understand that such practice in the USA is referred to as the common law. Most of the following discussions are based on the common law.

The majority of legal issues that arise in the practice of pain medicine are mostly civil cases. Criminal cases are increasing in number, especially if death is involved or in case that deal with the prescription of opioid analgesics. Such cases can be classified as both criminal and civil from the same transaction and occurrence, and decision in the criminal case can be used as evidence in a later civil case.

There are other laws enacted by Congress or by the State, which provide strict liability, regardless of prior knowledge of that law or by intent in the act. An individual is strictly liable whenever the requirements of the law are not met. This is often classified as a misdemeanor and rarely a felony except as stated otherwise. Other legal issues may arise from contractual obligations and employments of others either directly or as independent contractors. While this topic will not address the totality of legal issues in pain medicine, the following discussions will focus on relevant legal terms.

Relevance to Clinical Practice

Civil cases tend to be assessed under Tort laws that may require intentional acts or voluntary acts, or those that do not require intentional acts. The most common area of litigation in medicine in general, and specifically to pain medicine, is negligence.

Medical Negligence : Generally, negligence requires some elements that have to be present, which include the following [3]:

Duty of Care

This is a duty owed to foreseeable plaintiffs in the zone of danger, defined as the amount of care that is expected from a reasonable prudent person under such circumstances. For physicians, this is based on a national standard. For a specialist in pain medicine, duty will be based on the national standard expected of a board-certified pain physician.

Duties of care are presumed where there is assumption of risk, such as with the treating physician, statutory obligation as based on statutory law or regulations, contractual obligation such as concierge medicine, existing relationship such as that between a patient and a physician even outside the hospital, and creation of a peril such as when a physician tries to help and makes the situation worse. Overall, while there is no general obligation to come to the aid of another, trying to help and in so doing creating more problems leads to a duty to care under creation of a peril.
Breach of Duty

This is when the above duty is not met under the expected circumstance. For example, if the expected standard of care fell short of the national standard.

Causation

This is based on two parts, which include actual causation and proximate causation. Actual causation is based on the “but for” test, if there is a single defendant whereby but for the act of that defendant, there will not be harm that ensues. In a situation where there are possible multiple defendants, the “substantial factor” test is used in terms of effects leading to the harm. In a situation where this is unascertainable, there is a “shift of burden of proof” test, which shifts the burden of proof to the defendant. This shift of burden occurs where multiple physicians are caring for a patient and a mishap occurs in which there is difficulty in finding a substantial factor for the mishap. The burden shifts to each of the defendants to prove that each individually was not culpable.

Proximate causation is the direct or indirect cause of the harm that the patient experienced. A direct cause is a foreseeable cause when the expected duty is breached. An indirect cause is a consequence that is an intervening cause. For example, an indirect cause occurs if an epidural injection by a pain physician leads to an epidural abscess from negligent nonuse of an aseptic technique, which subsequently leads to the need for surgical decompression, which in turn leads to a spinal cord injury. The interventional pain physician may be liable for the spinal cord injury because the surgical decompression is an intervening action. The intervening cause test does not apply if such act is due to an intentional tort or a crime.

Damages: There has to be harm in the process of the breach of the duty of care for medical negligence to occur.

Res Ipsa Loquitur

Under the breach of duty of care, and the doctrine of Res Ipsa Loquitur, it is presumed that the very nature of a medical mishap which causes injury to a patient suggests negligent conduct, even if there are not enough facts to define breach. This is because of unknown circumstances of the events leading to the injury. This requires three elements:

The harm will not normally occur without negligence.
Such harm will normally be caused due to negligence on the part of the defendant, which in this case is the physician.
The circumstances under which the harm occurred were in the exclusive control of the defendant (physician).

An example of Res Ipsa Loquitur includes a circumstance whereby a patient came in for an epidural injection under sedation, walks into the procedure room on that day, but after the procedure is found to be paraplegic. The above three elements would be applicable and this would avoid the need to try and prove that there is either a breach or non-breach of duty.

There are defenses to medical negligence that include an assumption of risk, such as when a patient is fully aware of all the risks through an informed consent process and still opts to proceed with the treatment plan. Contributory negligence is based on a patient contributing to the harm by his/her action, which may bar recovery in minority jurisdictions. Comparative negligence is based on the percentage of culpability in which a jury will assign a percentage of faults; pure comparative fault is based strictly on that percentage, whereby partial/modified comparative fault only allows the patient to recover his/her percentage if it is below 50% and none if it is above 50%. The tort cases requiring intentional acts include assault, battery, false imprisonment, and intentional infliction of emotional distress.

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